Citation Nr: 0606279
Decision Date: 03/03/06 Archive Date: 03/14/06
DOCKET NO. 96-08 217 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to an initial evaluation in excess of 20
percent for chondromalacia and arthritis of the right knee.
2. Entitlement to a total rating for compensation purposes
based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Robert E. P. Jones, Counsel
INTRODUCTION
The veteran served on active duty from March 1973 to November
1976.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions by the Department of Veterans
Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The
veteran was afforded an RO hearing in May 1996 and Travel
Board hearings in September 1997 and June 1998. A transcript
of each hearing is of record.
When this case was most recently before the Board in December
2003, it was remanded for further action by the originating
agency. While the case was in remand status, the veteran's
appeal for service connection for ankylosing spondylitis and
Reiter's syndrome was resolved by a July 2005 rating
decision, which granted service connection for
spondyloarthropathy.
The issue of entitlement to a TDIU is addressed in the remand
that follows the order section of this decision.
FINDINGS OF FACT
1. Prior to September 11, 2003, flexion of the veteran's
right knee was not limited to less than 30 degrees.
2. From September 11, 2003, the limitation of flexion of the
veteran's right knee has more nearly approximated limitation
to 15 degrees than limitation to 30 degrees.
3. There is no instability or limitation of extension of the
right knee.
CONCLUSIONS OF LAW
1. Prior to September 11, 2003, the criteria for an initial
evaluation in excess of 20 percent for chondromalacia and
arthritis of the right knee had not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45,
4.71a, Diagnostic Codes 5257, 5260, 5261 (2005).
2. From September 11, 2003, the criteria for an initial
evaluation of 30 percent for chondromalacia and arthritis of
the right knee have been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a,
Diagnostic Codes 5257, 5260, 5261 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2005), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
The Board also notes that the Court has held that the plain
language of 38 U.S.C.A. § 5103(a) (West 2002), requires that
notice to a claimant pursuant to the VCAA be provided "at the
time" that, or "immediately after," VA receives a complete
or substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. at 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. at 120.
The veteran's claim was initially adjudicated long before the
enactment of the VCAA. The record reflects that he was
provided the required notice, to include notice that he
should submit any pertinent evidence in his possession, by
means of April 2004 and August 2005 letters from the agency
of original jurisdiction.
The Board notes that the veteran's VA treatment records,
private medical records and Social Security Administration
medical records have been obtained. The veteran has
testified at hearings on appeal. The veteran has been
accorded ample opportunity to present evidence and argument
in support of the appeal and he has done so.
Neither the veteran nor his representative has identified any
outstanding evidence that could be obtained to substantiate
the claim. The Board is also unaware of any such outstanding
evidence. In this regard, the Board notes that in September
2002, the Board ordered its development unit to make
arrangements for the veteran to be afforded a VA examination
to determine the degree of severity of his right knee
disability. In accordance with this directive, the veteran
was provided an appropriate VA examination in September 2003.
In December 2003, the Board remanded the case to the
originating agency because the regulation authorizing the
Board to consider evidence in the first instance without a
waiver from the veteran or his representative was invalidated
by the Court. At the time of the December 2003 remand, the
Board was not aware that the veteran had already been
provided the required examination of his right knee in
September 2003. As a result, the Board ordered the
originating agency to make arrangements for the veteran to be
afforded a VA examination of his right knee. Subsequent to
the Board's remand, the report of the September 2003
examination was associated with the claims folders and the
originating agency correctly determined that this examination
report is in compliance with the Board's remand directive.
Consequently, another VA examination is not required.
Following the provision of the required notice and the
completion of all indicated development of the record, the
originating agency readjudicated the veteran's claim. There
is no indication in the record or reason to believe that the
ultimate decision of the originating agency would have been
different had complete VCAA notice been provided at an
earlier time.
In sum, the Board is satisfied that the originating agency
properly processed the veteran's right knee claim after
providing the required notice and that any procedural errors
in the development and consideration of this claim by the
originating agency were insignificant and non-prejudicial to
the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2005). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(2005).
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. § 4.40 concerning lack of normal
endurance, functional loss due to pain, and pain on use and
during flare-ups; the provisions of 38 C.F.R. § 4.45
concerning weakened movement, excess fatigability, and
incoordination; and the provisions of 38 C.F.R. § 4.10
concerning the effects of the disability on the veteran's
ordinary activity are for consideration. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic code(s) for the specific joint(s)
involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
Limitation of flexion of a leg warrants a noncompensable
evaluation if flexion is limited to 60 degrees, a 10 percent
evaluation if flexion is limited to 45 degrees, a 20 percent
evaluation if flexion is limited to 30 degrees, or a 30
percent evaluation if flexion is limited to 15 degrees. 38
C.F.R. § 4.71a, Diagnostic Code 5260.
Limitation of extension of a leg warrants a noncompensable
evaluation if extension is limited to 5 degrees, a 10 percent
evaluation if extension is limited to 10 degrees, a 20
percent evaluation if extension is limited to 15 degrees, a
30 percent evaluation if extension is limited to 20 degrees,
a 40 percent evaluation if extension is limited to 30
degrees, or a 50 percent evaluation if extension is limited
to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.
Normal (full) range of motion of the knee is from 0 degrees
of extension to 140 degrees of flexion. 38 C.F.R. § 4.71,
Plate II.
Knee impairment with recurrent subluxation or lateral
instability warrants a 10 percent evaluation if it is slight,
a 20 percent evaluation if it is moderate, or a 30 percent
evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic
Code 5257.
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14 (2005). However, § 4.14
does not preclude the assignment of separate evaluations for
separate and distinct symptomatology where none of the
symptomatology justifying an evaluation under one diagnostic
code is duplicative of or overlapping with the symptomatology
justifying an evaluation under another diagnostic code.
Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The VA General Counsel has held that a claimant who has
arthritis and instability of a knee may be rated separately
under Diagnostic Codes 5003 and 5257, while cautioning that
any such separate rating must be based on additional
disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg.
63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704
(August 14, 1998).
The VA General Counsel also recently held that separate
ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260
(limitation of flexion of the leg) and Diagnostic Code 5261
(limitation of extension of he leg), may be assigned for
disability of the same joint. VAOGCPREC 9-2004 (September
17, 2004).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
History and Analysis
This appeal stems from a rating decision in December 1995
which originally granted service connection for softening of
the cartilage of the right kneecap and evaluated the
disability as 10 percent disabling. By rating decision in
July 2005, the veteran's right knee disability was
reclassified as chondromalacia and arthritis of the right
knee. This decision also assigned a 20 percent rating for
the veteran's right knee disability from the effective date
of service connection, October 31, 1995. The veteran
maintains that he is entitled to an initial rating in excess
of 20 percent for his right knee disability.
At his June 1996 RO hearing and his Board hearings in
September 1997 and January 1998, the veteran asserted that he
had frequent pain, stiffness, instability, and swelling of
the right knee. He asserted that he should be assigned a
higher rating for his right knee disability.
The veteran was provided VA medical examinations in November
1995, November 2000, and September 2003. At these
examinations, the veteran complained of pain, instability,
and swelling of the right knee. The examination reports show
that the veteran had full extension of the right knee and no
swelling or instability of the right knee.
The November 1995 VA examination revealed full flexion of the
right knee. The November 2000 VA examination revealed 50
degrees of flexion without pain, and 95 degrees of flexion
with pain.
The September 2003 examination revealed the most right knee
disability. The report of this examination notes that the
veteran had 45 degrees of flexion, with pain beginning at 30
degrees. The extent of the veteran's right knee pain on
repeated motion could not be assessed without resorting to
speculation. With increasing amounts of resistance, from
light to strong, during range of motion, the veteran had full
extension and 30 degrees of flexion of the right knee. The
examiner reported that there were no signs of incoordination,
weak movements, or excessive fatigability during repeated
range of motion exercises of the right knee. The veteran
stated that any range of motion past 30 degrees caused severe
pain. Right knee X-rays showed mild osteoarthritis. The
diagnoses included chondromalacia and arthritis of the right
knee, with pain causing mild functional impairment. The
examiner noted that the veteran described flare-ups which
would be expected to cause an additional limit on functional
ability of 50 percent reduction in the range of motion.
VA outpatient treatment records reveal occasional complaints
of pain and swelling of the right knee.
The medical evidence reveals no instability of the right
knee; therefore, an initial compensable rating is not
warranted under Diagnostic Code 5257.
Since the veteran has always been shown to have full right
knee extension, without pain, the veteran is not entitled to
a compensable initial rating for limitation of extension
under Diagnostic Code 5261.
Prior to September 11, 2003, the veteran was shown to have at
least 50 degrees of flexion of the right knee without pain.
Prior to that time he was not shown to have additional
limitation due to pain, incoordination, or weakness; on
repeated use; or during flare ups. Accordingly, the Board
concludes that an initial rating in excess of 20 percent for
limitation of flexion under Diagnostic Code 5260 is not
warranted prior to September 11, 2003.
The Board notes that September 2003 VA examiner indicated
that the veteran described flare-ups which would be expected
to cause an additional limit on functional ability of 50
percent reduction in range of motion. This examiner found
that the veteran had 30 degrees of extension without pain.
The Board must consider limitation due to pain,
incoordination, or weakness; on repeated use; or during flare
ups. See Deluca, supra. If the veteran's painless range of
right knee motion was decreased by half on flare-ups, this
would indicate flexion limited to 15 degrees. Although this
extent of limitation of motion is not always present, with
application of 38 C.F.R. § 4.7, the Board concludes that the
disability warrants a 30 percent evaluation under Diagnostic
Code 5260 from September 11, 2003, the date of the VA
examination. This is the maximum evaluation authorized for
limitation of extension.
The Board has considered whether there is any other schedular
basis for granting a rating in excess of 20 percent prior to
September 11, 2003, or in excess of 30 percent from that date
but has found none. In particular, the Board notes that
Diagnostic Code 5262 is not applicable because the veteran
does not have malunion or nonunion of the tibia or fibula.
As reflected above, the Board has considered whether staged
ratings are warranted and has in fact granted a higher rating
for a portion of the initial evaluation period. Finally, the
Board has considered whether this case should be forwarded to
the Director of the VA Compensation and Pension Service for
extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
The record reflects that the veteran has not required
frequent hospitalization for his knee disability and that the
manifestations of the disability are those contemplated by
the schedular criteria. In sum, there is no indication that
the average industrial impairment from the right knee
disability would be in excess of that contemplated by the
assigned evaluations. Therefore, the Board has determined
that referral of this case for extra-schedular consideration
is not in order.
ORDER
Entitlement to an evaluation in excess of 20 percent for
chondromalacia and arthritis of the right knee during the
initial evaluation period prior to September 11, 2003, is
denied.
Entitlement to an evaluation of 30 percent for chondromalacia
and arthritis of the right knee is granted from September 11,
2003, subject to the criteria governing the payment of
monetary benefits.
REMAND
With respect to the veteran's claim for a TDIU, the Board
notes that although relevant evidence has been added to the
record since August 2001, a supplemental statement of the
case addressing the TDIU issue was last issued in August
2001. Moreover, it is not clear to the Board that the
veteran is still claiming entitlement to this benefit since
he reported at a September 2005 VA examination that he was
currently employed as an estimator through the Right to Work
Program.
The Board also notes that the appellant has not received VCAA
notice with respect to his claim for TDIU.
In light of these circumstances, this case is REMANDED to the
RO or the Appeals Management Center (AMC) for the following
actions:
1. The veteran should be requested to
clarify whether he is still claiming
entitlement to a TDIU. If the veteran
does not withdraw his appeal for this
benefit, the following actions should be
accomplished.
2. The RO or the AMC should send the
veteran a letter providing the notice
required under 38 U.S.C.A. § 5103(a)
(West 2002) and 38 C.F.R. § 3.159(b)
(2005), for his TDIU claim, to include
notice that he should submit any
pertinent evidence in his possession and
provide up-to-date information concerning
his education and industrial background.
3. The RO or the AMC should undertake
appropriate development to obtain any
pertinent evidence identified but not
provided by the veteran. If it is unable
to obtain any such evidence, it should so
inform the veteran and his representative
and request them to submit the
outstanding evidence.
4. The RO or the AMC should also
undertake any other development it
determines to be warranted, such as
affording the veteran an appropriate VA
examination to determine the impact of
his service-connected disabilities on his
ability to maintain substantially gainful
employment.
5. Then, the RO or the AMC should
readjudicate the veteran's claim. If the
benefit sought on appeal is not granted
to the veteran's satisfaction, the RO or
the AMC should issue a supplemental
statement of the case, which considers
all evidence received since the August
2001 supplemental statement of the case,
and afford the veteran and his
representative the requisite opportunity
to respond before the claims folders are
returned to the Board for further
appellate action.
By this remand, the Board intimates no opinion as to any
ultimate outcome warranted. The veteran need take no action
until he is otherwise notified, but he has the right to
submit additional evidence and argument on the matter the
Board has remanded. See Kutscherousky v. West, 12 Vet. App.
369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
D. C. SPICKLER
CONSTANCE B. TOBIAS
Veterans Law Judge
Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
______________________________________________
SHANE A. DURKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs